August 17, 2004

Porter Goss, Take 2: Oops! There Went My Civil Liberties Edition

Via The Light of Reason and Newsweek: On June 16, Porter Goss introduced a bill that gives the Director of Central Intelligence a variety of new powers to coordinate intelligence activities. It also contains one truly scary provision, which Newsweek describes as follows:

"The Goss bill tracks current law by stating that the DCI shall “collect, coordinate and direct” the collection of intelligence by the U.S. government—except that the CIA “may not exercise police, subpoena, or law enforcement powers within the United States.”

The bill then adds new language after that clause, however, saying that the ban on domestic law-enforcement operations applies “except as otherwise permitted by law or as directed by the president.”

In effect, one former top U.S. intelligence community official told NEWSWEEK, the language in the Goss bill would enable the president to issue secret findings allowing the CIA to conduct covert operations inside the United States—without even any notification to Congress."

(snip) (order of passages reversed, so that a description of the actual change comes first; comments on it second)

"The language contained in the Goss bill has alarmed civil-liberties advocates. It also today prompted one former top CIA official to describe it as a potentially “dramatic” change in the guidelines that have governed U.S. intelligence operations for more than a half century.

“This language on its face would have allowed President Nixon to authorize the CIA to bug the Democratic National Committee headquarters,” Jeffrey H. Smith, who served as general counsel of the CIA between 1995 and 1996, told NEWSWEEK. “I can’t imagine what Porter had in mind.”

So let me see if I have this straight: if Goss's bill passes, the CIA will be able to operate within the United States, and in particular to exercise police and subpoena powers, when "otherwise permitted by law". This overturns a ban that has been in place for decades, and that was put in place precisely because the CIA is not bound by the same legal rules as domestic law enforcement agencies, rules that were put in place to protect our civil liberties, and that are generally thought to be required by the Constitution. Moreover, even when operations within the US are not "otherwise permitted by law", they can be carried out "at the direction of the President". The relevant section of the bill (Sec. 102.c.1) does not go on to say anything about the grounds on which the President can give such a direction, procedural checks, or notification of relevant Congressional Committees; in fact, having created this new Presidential power, it does not go on to qualify it in any way at all, nor can I find any limits on it elsewhere in the bill. (If I've missed something, please tell me: I'm not a lawyer.) So as far as I can tell, this law would allow the President to direct the CIA to exercise police powers, including arrests, wiretaps, searches, and so forth; it would allow the President to issue these directives even when they are not "otherwise permitted by law", and it neither places any limits on its exercise nor requires any sort of oversight. There is a name for systems of government in which the executive has this sort of unchecked power, and it is 'tyranny'.

Well, I've heard a great deal of discussion to the effect that it was, to a large degree, the artificial division between CIA and FBI that permitted 9/11 to happen in the first place. So, is it automatically an undesirable thing to have a law-enforcement branch that also gathers intelligence overseas?

What, precisely, are "covert operations" in this context? And how much notification does the FBI have to give Congress regarding investigations?

Slart: the actual language is: "the Agency may not exercise police, subpoena, or law enforcement powers within the United States, except as otherwise permitted by law or as directed by the President". The FBI has to go through various procedures to exercise its internal police powers: getting warrants, for instance. Thus they do have to notify someone, in this case a judge, and get his or her approval, before they wiretap, search, or arrest. The CIA does not have to get warrants, for obvious reasons. This is why some sort of oversight is needed. And this is why it's not just a question of having "a law-enforcement branch that also gathers intelligence overseas". The FBI already does that (at times.) It's about having an agency with the domestic police powers that operates without the normal restrictions.

As I understand it, the reason for the much-maligned "wall" between the two was that Congress was trying to figure out how to let the CIA operate within the US without essentially obviating the restrictions on the FBI (since if the CIA could conduct warrantless searches within the US and then just give the information it uncovered to the FBI, the FBI could just go to the CIA instead of a judge when it wanted to wiretap.) The downside of attempts to knock down the walls between intelligence and law enforcement agencies has always been the possibility of creating an agency with the CIA's lack of restrictions and the FBI's internal police powers. As I read it, Goss's bill allows the President to authorize the CIA to become such an agency whenever he wants, and without restrictions.

The reason I posted on this, of course, was not that I think this bill will pass (although one never knows), but, of course, that its author seems likely to be our new CIA director.

Well, the bill clearly allows the CIA to exercise domestic police powers when the President directs it to. And the bill doesn't seem to me to contain any restrictions on the President's ability to give those directions, or on how the CIA can act on them. But as I said in the original post, I'm open to correction.

Ah. I thought the President already had power to direct action that wasn't otherwise provided for by law. Am I wrong?

The phrase in the bill is "not otherwise permitted by law." The President definitely does NOT have the power to direct action not otherwise permitted by law. Please write "laws, not men," on the blackboard 1000 times.

"Executive orders are official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government. The text of Executive orders appears in the daily Federal Register as each Executive order is signed by the President and received by the Office of the Federal Register. The text of Executive orders beginning with Executive Order 7316 of March 13, 1936, also appears in the sequential editions of Title 3 of the Code of Federal Regulations (CFR)." (link As I understand it, they are orders given by the President in which he directs some agency to do something that he deems necessary for the fulfillment of his various responsibilities.

However, executive orders are supposed to conform to law, the faithful execution of the laws being one of the President's responsibilities.

The President does, as you say, have the right to direct agencies to do things not provided for by law. For instance, if a law requires the President to do X, without saying how, the President can order the relevant agency to take specific steps in order to do X, even though the law does not mention these particular steps. He can also do various things not provided for by law in the exercise of his power as commander in chief. However, he cannot do things that are not permitted by law (that are not just not mentioned in existing law, but violations of it.)

Now: the problem with Goss's bill is not that it would allow the CIA to break the law. By authorizing the CIA to exercise domestic police powers when directed to do so by the President, even when what it's directed to do is not "otherwise permitted by law", the bill (if passed) would make the CIA's action legal. The problem is that in so doing, this law makes it legal for the President to order the CIA to exercise domestic police powers without restriction, and specifically without any of the restrictions on such powers imposed by other laws. It would be different if it said: the President can give such a direction only under certain circumstances, or under certain procedural restrictions, or on certain grounds, or with some sort of oversight. But it seems to me to have place no restrictions at all on these directives. (Again, I linked to the law above, and would welcome correction.) The power to use domestic police powers without restriction, oversight, or really any check at all, on any grounds he wants, is not a power the President now has, nor is it one I think he should have.

Thanks for the extremely thoughtful response. I'm wondering, though, if the exercise of police powers would require coordination with Justice? Or is there, as you say, a giant loophole in the law? Ah, there it is:

`(4) coordinate with the Department of Justice to ensure that the activities of the intelligence community are consistent with the obligations of the Constitution and laws, regulations, and executive orders of the United States;

If there is, I'd think that even if by some miracle it sailed through Congress, the Supreme Court would punt it. Still, looks like bad law to me. It'd be nice to have von's take on this, just to be complete.

Will someone smarter than me please comment on the likely constitutionality of such a bill? Or of a Presidentially-ordered CIA "police" action that doesn't conform to what we expect of "normal" law enforcement agencies?

Not my area of expertise but:
The provision probably would not be unconstitutional in every application, so my guess is courts would reject a "facial challenge" where you challenge the law based on its text alone. Instead you would have to challenge it "as applied." And all information about how it was applied would be kept secret.

Consultation with the DOJ is no safeguard. You remember the torture memo, right?

"Ah. I thought the President already had power to direct action that wasn't otherwise provided for by law. Am I wrong?"

Quite, if it's in violation of the law. (If not, I'm not following what you mean.) That was Nixon's belief, and the Supreme Court struck it down. Ditto recent Bush attempts. For instance, the 9th Circuit held in Falen Gherebi v. George Walker Bush, Donald Rumsfeld, a decision that stands, that:

We recognize that the process due “enemy combatant” habeas petitioners may
vary with the circumstances and are fully aware of the unprecedented challenges
that affect the United States’ national security interests today, and we share the
desire of all Americans to ensure that the Executive enjoys the necessary power and
flexibility to prevent future terrorist attacks. However, even in times of national
emergency–indeed, particularly in such times–it is the obligation of the Judicial
Branch to ensure the preservation of our constitutional values and to prevent the
Executive Branch from running roughshod over the rights of citizens and aliens
alike. Here, we simply cannot accept the government’s position that the Executive
Branch possesses the unchecked authority to imprison indefinitely any persons,
foreign citizens included, on territory under the sole jurisdiction and control of the
United States, without permitting such prisoners recourse of any kind to any
judicial forum, or even access to counsel, regardless of the length or manner of
their confinement. We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, and that, contrary to the
government’s contention, Johnson neither requires nor authorizes it. In our view,
the government’s position is inconsistent with fundamental tenets of American
jurisprudence and raises most serious concerns under international law. Accordingly, we reverse the ruling of the district court that jurisdiction over Gherebi’s habeas petition does not lie.

There are many such decisions. The President is neither Emperor nor above the law.

Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Slart -- one of the lawyers can probably do better than I, but: the Constitution says that the President has the power "to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment" (Art. 2 sec. 2.) So that power has just the one limit: no pardons for impeachment; and I would assume that any attempt by Congress to impose further limits would for this reason be unconstitutional. In Article 2, sec. 3, the President is directed to "take Care that the Laws be faithfully executed", and there is no restriction on that. Taking care that the laws be faithfully executed will often require doing things that the laws do not specifically require (to use my previous example, laws often direct the President to accomplish something without saying exactly how); but it also requires that the President not violate any laws.

"What I meant by that, Gary, is that Executive Order power is a little...unusual. So is the power to pardon with apparently unlimited arbitrariness."

I don't know what you mean by this. Issuing Executive Orders goes back a long way, through Lincoln's Emancipation Proclamation to possibly Jefferson's Louisiana Purchase. Here is some very sloppy history. As Hilzoy ably pointed out before I could, the pardon power is explicit in the Constitution.

I said "unusual", not "unprecedented". "Unusual", in my admittedly opaque fashion means, in this case, that the power the President wields seems (to me, at least) to be almost completely unchecked by the other two branches of government. And in the case of Executive Orders, the President can in effect circumvent the Congress. Unless I completely misunderstand that power, which wouldn't surprise me in the least.

"And in the case of Executive Orders, the President can in effect circumvent the Congress. Unless I completely misunderstand that power, which wouldn't surprise me in the least."

In a limited way. The President can take various actions, but only if the Congress hasn't already spoken on the subject to circumscribe or forbid such actions. And if the Congress subsequently sufficiently disapproves, they can pass a law rolling back the Executive Order , which the President can then veto and the Congress then over-ride (not that this President has ever vetoed a bill, which is most unusual indeed).

So I'm not terribly worried, myself, though some do view the executive powers With Alarm.